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Tuesday, January 8, 2013

The writ petitioners make the prayer to constitute a Special Investigation Team comprising police officers from outside Manipur to investigate the cases of unlawful killings listed in the writ petition and to prosecute the alleged offenders but at this stage we are not inclined to appoint any Special investigation Team or to direct any investigation under the Code of Criminal Procedure. Instead, we would first like to be fully satisfied about the truth of the allegations concerning the cases cited by the writ petitioners. To that end, we propose to appoint a high powered commission that would tell us the correct facts in regard to the killings of victims in the cases cited by the petitioners. We, accordingly, constitute a three-member commission as under: 1. Mr. Justice N. Santosh Hegde, a former Judge of the Supreme Court of India, as Chairperson 2. Mr. J. M. Lyngdoh, former Chief Election Commissioner, as Member 3. Mr. Ajay Kumar Singh, former DGP and IGP, Karnataka. We request the Commission to make a thorough enquiry in the first six cases as detailed in “Compilation 1”, filed by the petitioners and record a finding regarding the past antecedents of the victims and the circumstances in which they were killed. The State Government and all other concerned agencies are directed to hand over to the Commission, without any delay, all records, materials and evidences relating to the cases, as directed above, for holding the enquiry. It will be open to the Commission to take statements of witnesses in connection with the enquiry conducted by it and it will, of course, be free to devise its own procedure for holding the enquiry. In light of the enquiries made by it, the Commission will also address the larger question of the role of the State Police and the security forces in Manipur. The Commission will also make a report regarding the functioning of the State Police and security forces in the State of Manipur and in case it finds that the actions of the police and/or the security forces transgress the legal bounds the Commission shall make its recommendations for keeping the police and the security forces within the legal bounds without compromising the fight against insurgency. The Commission is requested to give its report within twelve weeks from today. The Central Government and the Government of the State of Manipur are directed to extend full facilities, including manpower support and secretarial assistance as may be desired by the Commission to effectively and expeditiously carry out the task assigned to it by the Court. The Registry is directed to furnish a copy of this order and complete sets of briefs in both the writ petitions to each of the members of the Commission forthwith. Put up on receipt of the report by the Commission.

These two writ petitions, each filed under Article 32 of
the Constitution of India, raise some disquieting issues pertaining to the
State of Manipur. In writ petition (criminal) No.129 of 2012, it is stated
that, over the years, a large number of people, Indian citizens, have been
killed by the Manipur Police and other security forces while they were in
custody or in stage-managed encounters or in ways broadly termed as ‘extra-
judicial executions’. In writ petition (civil) No.445 of 2012, it is
stated that for a very long time, the State of Manipur is declared as
“disturbed area” and is put under the Armed Forces (Special Powers) Act,
1958, subverting the civil rights of the citizens of the State and making
it possible for the security forces to kill innocent persons with impunity.

In this order, we deal with the first writ petition, i.e., writ
petition (criminal) No.129/2012.

In this writ petition it is stated that during the period May, 1979
to May, 2012, 1528 people were killed in Manipur in extra-judicial
execution. The statement is mainly based on a memorandum prepared by ‘Civil
Society Coalition on Human Rights in Manipur and the UN’ and submitted to
one Christof Heyns, Special Rapporteur on extrajudicial, summary or
arbitrary executions, Mission to India, 19-30 March, 2012. The Memorandum
compiles the list of 1528 people allegedly killed unlawfully by the State
Police or the security forces. The writ petitioners later on filed
“Compilation 1” and “Compilation 2”. In “Compilation 1” details are given
of ten (10) cases relating to the killings of eleven (11) persons (out of
the list of 1528); in “Compilation 2”, similarly details are given of
thirteen (13) cases in which altogether seventeen (17) persons (out of the
list of 1528) are alleged to have been killed in extra judicial executions.

A counter affidavit is filed on behalf of the State of Manipur. In
the counter affidavit there is not only a complete denial of the
allegations made in the writ petition but there also seems to be an attempt
to forestall any examination of the matter by this Court. The plea is taken
that the National Human Rights Commission (NHRC) is the proper authority to
monitor the cases referred to in the writ petition. It is stated that in
regard to all the ten (10) cases highlighted in “Compilation 1” filed by
the petitioners, reports have been submitted to it and in none of those
cases the NHRC has recorded any finding of violation of human rights. It is
stated that the occasion for this Court to examine those cases would arise
only if it holds that the NHRC had failed to perform its statutory
functions in safeguarding the human rights of the people in the State.
This Court should not examine this matter directly but should only ask the
NHRC to indicate the status of the cases listed and highlighted in the writ
petition. We are unable even to follow such a plea. The course suggested by
the State will completely dissipate the vigour and vitality of Article 32
of the Constitution. Article 21 coupled with Article 32 of the Constitution
provides the finest guarantee and the most effective protection for the
most precious of all rights, namely, the right to life and personal liberty
of every person. Any indication of the violation of the right to life or
personal liberty would put all the faculties of this Court at high alert to
find out the truth and in case the Court finds that there has, in fact,
been violation of the right to life and personal liberty of any person, it
would be the Court’s bounden duty to step-in to protect those rights
against the unlawful onslaught by the State. We, therefore, see no reason
not to examine the matter directly but only vicariously and second-hand,
through the agency of the NHRC.
A reference is next made in the counter affidavit to an appeal
pending before this Court against the judgment of the Bombay High Court and
a writ petition, also pending before this Court, filed by the State of
Gujarat on the subject of fake encounters and it is stated that this case
should be tagged with those other two cases to be heard together. We fail
to see any relevance of the two cases referred to in the counter affidavit
and, in our view, the plea that these two writ petitions should only be
heard along with those two cases is meant to detract from consideration the
grave issues raised in the writ petition.
It is thirdly stated in the counter affidavit that the State of
Manipur is faced with the menace of insurgency for many years and details
are given of policemen and civilians killed and injured by the insurgents.
There are about 30 extremist organizations in the State out of which six
are very powerful and they are armed with sophisticated weapons. Their aim
and object is to secede from the Republic of India and to form an
independent State of Manipur. For realization of their objective they have
been indulging in violent activities, including killing of civilians and
members of security forces. It is stated in the counter affidavit that
during the period 2000 to October, 2012, 105 policemen, 260 security forces
personnel, and 1214 civilians were killed; the number of injured during the
same period is 178 for the policemen, 466 for members of security forces
and 1173 for civilians.
There is no denying that Manipur is facing the grave threat of
insurgency. It is also clear that a number of the insurgent groups are
operating there, some of which are heavily armed. These groups indulge in
heinous crimes like extortion and killing of people to establish their
hegemony. It is also evident from the counter affidavit filed by the State
that a number of police personnel and members of security forces have laid
down their lives or received serious injuries in fighting against
insurgency. But, citing the number of the policemen and the security forces
personnel and the civilians killed and injured at the hands of the
insurgents does not really answer the issues raised by the writ
petitioners. In People’s Union for Civil Liberties v. Union of India and
another[1], this Court earlier dealt with a similar issue from Manipur
itself. In that case, it was alleged that two persons along with others
were seized by the police and taken in a truck to a distant place and shot
there. In an inquiry by the District and Sessions Judge, Manipur (West),
held on the direction of this Court, the allegation was found to be
correct. In that case, dealing with question of the right to life in a
situation where the State was infested with terrorism and insurgency, this
Court in paragraphs 5 and 6 of the judgment observed as follows:
“5. It is submitted by Ms S. Janani, the learned counsel for the State
of Manipur, that Manipur is a disturbed area, that there are several
terrorist groups operating in the State, that Hamar Peoples' Convention
is one of such terrorist organizations, that they have been indulging
in a number of crimes affecting the public order — indeed, affecting
the security of the State. It is submitted that there have been regular
encounters and exchange of fire between police and terrorists on a
number of occasions. A number of citizens have suffered at the hands of
terrorists and many people have been killed. The situation is not a
normal one. Information was received by the police that terrorists were
gathering in the house on that night and on the basis of that
information, police conducted the raid. The raiding party was fortunate
that the people inside the house including the deceased did not notice
the police, in which case the police would have suffered serious
casualties. The police party was successful in surprising the
terrorists. There was exchange of fire resulting in the death of the
terrorists.

6. In view of the fact that we have accepted the finding recorded by
the learned District and Sessions Judge, it is not possible to accede
to the contention of Ms Janani insofar as the manner in which the
incident had taken place. It is true that Manipur is a disturbed area,
that there appears to be a good amount of terrorist activity affecting
public order and, may be, even security of that State. It may also be
that under these conditions, certain additional and unusual powers have
to be given to the police to deal with terrorism. It may be necessary
to fight terrorism with a strong hand which may involve vesting of good
amount of discretion in the police officers or other paramilitary
forces engaged in fighting them. If the version of the police with
respect to the incident in question were true, there could have been no
question of any interference by the court. Nobody can say that the
police should wait till they are shot at. It is for the force on the
spot to decide when to act, how to act and where to act. It is not for
the court to say how the terrorists should be fought. We cannot be
blind to the fact that even after fifty years of our independence, our
territorial integrity is not fully secure. There are several types of
separatist and terrorist activities in several parts of the country.
They have to be subdued. Whether they should be fought politically or
be dealt with by force is a matter of policy for the Government to
determine. The courts may not be the appropriate forum to determine
those questions. All this is beyond dispute. But the present case
appears to be one where two persons along with some others were just
seized from a hut, taken to a long distance away in a truck and shot
there. This type of activity cannot certainly be countenanced by the
courts even in the case of disturbed areas. If the police had
information that terrorists were gathering at a particular place and if
they had surprised them and arrested them, the proper course for them
was to deal with them according to law. “Administrative liquidation”
was certainly not a course open to them.”
(emphasis added)

We respectfully reiterate what was earlier said by the Court in
People’s Union for Civil Liberties.
In 1997, in the Peoples’ Union for Civil Liberties this Court,
dealing with the case of killing of two persons in Manipur had cautioned
the State against “Administrative liquidation”. But, after 15 years in this
case, we are faced with similar allegations on a much larger scale.
For this Court, the life of a policeman or a member of the security
forces is no less precious and valuable than any other person. The lives
lost in the fight against terrorism and insurgency are indeed the most
grievous loss. But to the State it is not open to cite the numbers of
policemen and security forces killed to justify custodial death, fake
encounter or what this Court had called “Administrative liquidation”. It is
simply not permitted by the Constitution. And in a situation where the
Court finds a person’s rights, specially the right to life under assault by
the State or the agencies of the State, it must step-in and stand with the
individual and prohibit the State or its agencies from violating the rights
guaranteed under the Constitution. That is the role of this Court and it
would perform it under all circumstances. We, thus, find that the third
plea raised in the counter affidavit is equally without substance.
Lastly, the counter affidavit, and the Supplementary Counter
Affidavit filed by the State give the State’s version of the 10 cases
highlighted in the Compilation 1, filed by the petitioners. But on that we
would not like to make any comment at this stage.
The Union of India has also filed a separate counter affidavit. It is
a more responsible affidavit in that it does not evade the issues nor does
it try to dissuade the Court from examining the cases of alleged extra-
judicial executions brought to its notice by the writ petitioners. In the
counter affidavit filed by the Union, first a reference is made to
different legal provisions (Section 146 and Sections 129 to 132 of the
Criminal Procedure Code, Sections 99 to 106 in Chapter IV of the Indian
Penal Code and Section 4 of the Armed Forces (Special Powers) Act, 1959)
and it is contended that subject to the conditions stipulated in those
provisions, killing of a person by a police officer or a member of the
armed forces may not amount to an offence and may be justified in law. It
is stated in the counter affidavit that all the cases listed and/or
highlighted in the writ petition and described as extra-judicial executions
are cases of persons who died during counter-insurgency operations or in
performance of other lawful duties by the police and the personnel of the
armed forces. It is emphasized that in most of the cases the so-called
victims might have been killed in the lawful exercise of the powers and/or
in discharge of official duties by the police and the armed forces
personnel. It is further said that “public order” and, by implication, the
maintenance of “law and order” are primarily State subjects and the role of
the Central Government in deploying the armed forces personnel in the State
is only supportive in aid of the law and order machinery of the State. The
State of Manipur has the primary duty to deal with the issue of
investigation in relevant cases, except where provided to the contrary in
any other law for the time being in force. It is stated that the “very
gloomy picture” of the State of Manipur sought to be presented by the writ
petitioners is incorrect and misleading. It is asserted that Manipur is
fully and completely integrated with the rest of the country and it is
pointed out that in the 1990 elections the voting turnout for the 60
assembly seats in the State was 89.95%. Similarly, during the recent 2012
assembly elections, the voting turnout was 83.24%. It is added that the
voting percentage in Manipur is amongst the highest in the country as a
whole and it clearly shows that the people of Manipur have taken active
participation in the elections showing their full faith in the Constitution
and the constitutional process.
Coming to the issue of insurgency, it is stated in the counter
affidavit as under:
“It is only a handful of disgruntled elements who have formed
associations/ groups that indulge in militant and unlawful activities
in order to retain their influence and hegemony in the society. These
groups also challenge the sovereignty and integrity of the country by
following aims and objectives which are secessionist in nature. It is
emphasized that only around 1500 militants are holding a population of
23 lakhs in Manipur to ransom and keeping the people in constant fear.
The root cause of militancy in Manipur is the constant endeavour of
these insurgent groups so that they can continue to extort money and
the leaders of such groups can continue to lead luxurious life in
foreign countries. The tribal divide and factions in the society and
the unemployed youth are being exploited by these militant outfits to
fuel tension in the society.”

It is further stated in paragraph 13 of the counter affidavit as
under:
“It may also be submitted that the ethnic rivalries amongst the
different tribal groups viz. Meities, Kukis and Nagas are deep-rooted
and the militant groups fervently advance their ideologies by taking
advantage of the porous international border with Myanmar which is 256
km long, heavily forested and contains some of the most difficult
terrain. The border area is inhabited by the same tribes on either
side. These tribes have family relations and for social interactions a
free movement regime for the locals to move up to 16 kms on both sides
is permitted. Taking advantage of this situation the militant outfits
utilize the other side of the border (which is beyond the jurisdiction
of the Indian Armed Forces) for conveniently conducting their
operations of extortions/ kidnapping/ killing/ looting and ambushing
the security forces.”

The counter affidavit goes on to explain that the operations of not
only the State Police but the different security forces under the control
of the Central Government are being strictly monitored and kept within the
parameters set out by the different laws under which those forces operate.
It is stated that different statutory agencies acting as watchdog ensure
that the armed forces do not overstep the Constitutional or the legal
limits in carrying out the anti-insurgency operations.
Ms. Guruswamy, the learned amicus has, on the other hand, presented
before us tables and charts showing the inconsistencies in the materials
produced by the State of Manipur itself concerning the 10 cases highlighted
in “Compilation 1” filed by the petitioners. She also submitted that though
enquiries were purported to be held by an Executive Magistrate in the 10
cases described in “Compilation 1”, in none of those cases the kin of the
victims came before the Magistrate to give their statements even though
they were approaching the court, complaining that the victims were killed
in fake encounters. She further pointed out that in some of the cases even
the police/security forces personnel who were engaged in the killings did
not turn up, despite summons issued by the Magistrate, to give their
version of the occurrence and the Magistrate closed the enquiry, recording
that there was nothing to indicate that the victims were killed unlawfully.
In some cases the Magistrate, even while recording the finding that the
case did not appear to be one of fake encounter made the concluding
observation that it would be helpful to sensitize the police/armed forces
in human rights. She submitted that the so-called enquiries held by the
Magistrate were wholly unsatisfactory and no reliance could be placed on
the findings recorded in those enquiries.
Apart from the criticisms made by the amicus against the Magisterial
enquiries held in the 10 cases of “Compilation 1” it is important to note
that a number of cases cited by the petitioners had gone to the Gauhati
High Court and on the direction of the High Court, inquires, of a judicial
nature, were made into the killings of (1) Azad Khan, age 12 years
(according to the State, 15 years) (from “Compilation 1”), (2)Nongmaithem
Michael Singh, age 32 years, (3) Ningombam Gopal Singh, age 39 years, (4)
(i) Salam Gurung alias Jingo, age 24 years, (ii) Soubam Baocha alias
Shachinta, age 24 years (5) (i) Mutum Herojit Singh, age 28 years (ii)
Mutum Rajen, age 22 years (6) Ngangbam Naoba alias Phulchand Singh, age 27
years (7) Sapam Gitachandra Singh, age 22 years (8) (i) Kabrambam Premjit
Singh, (ii) Elangbam Kanto Singh (9) Longjam Uttamkumar Singh, age 34 years
(10) Loitongbam Satish @ Tomba Singh, age 34 years (11) Thockhom Inao @
Herojit Singh, age 31 years, (12) Khumallambam Debeshower Singh (13) (i)
Km. Yumnam Robita Devi (ii) Angom Romajitn Singh (14) Thoudem Shantikumar
Singh (all from “Compilation 2”).
In all those cases the judicial inquiry found that the victims were
not members of any insurgent or unlawful groups and they were killed by the
police or security forces in cold blood and stage-managed encounters.
It is stated on behalf of the petitioners that though it was
established in the judicial enquiry that those persons were victims of
extra-judicial executions, the High Court simply directed for payment of
monetary compensation to the kins of the victims. Learned Counsel for the
petitioners submitted that payment of rupees two to four lakhs for killing
a person from funds that are not subjected to any audit, instead of any
accountability for cold blooded murder, perfectly suits the security forces
and they only get encouraged to carry out further killings with impunity.
On a careful consideration of the averments made in the writ petition
and the counter affidavits filed by the respondents and on hearing Ms
Guruswamy, the amicus, Mr. Gonsalves the learned counsel appearing for the
writ petitioners, Mr. Kuhad, the Additional Solicitor General appearing for
the Union of India, Mr. Ranjit Kumar, senior advocate appearing for the
State of Manipur and Ms. Shobha, advocate appearing for the NHRC, we find
it impossible to overlook the matter without further investigation. We are
clearly of the view that this matter requires further careful and deeper
consideration. The writ petitioners make the prayer to constitute a SpecialInvestigation Team comprising police officers from outside Manipur toinvestigate the cases of unlawful killings listed in the writ petition andto prosecute the alleged offenders but at this stage we are not inclined toappoint any Special investigation Team or to direct any investigation underthe Code of Criminal Procedure. Instead, we would first like to be fullysatisfied about the truth of the allegations concerning the cases cited bythe writ petitioners. To that end, we propose to appoint a high poweredcommission that would tell us the correct facts in regard to the killingsof victims in the cases cited by the petitioners. We, accordingly,constitute a three-member commission as under: 1. Mr. Justice N. Santosh Hegde, a former Judge of the Supreme Court of India, as Chairperson 2. Mr. J. M. Lyngdoh, former Chief Election Commissioner, as Member 3. Mr. Ajay Kumar Singh, former DGP and IGP, Karnataka. We request the Commission to make a thorough enquiry in the first sixcases as detailed in “Compilation 1”, filed by the petitioners and record afinding regarding the past antecedents of the victims and the circumstancesin which they were killed. The State Government and all other concernedagencies are directed to hand over to the Commission, without any delay,all records, materials and evidences relating to the cases, as directedabove, for holding the enquiry. It will be open to the Commission to takestatements of witnesses in connection with the enquiry conducted by it andit will, of course, be free to devise its own procedure for holding theenquiry. In light of the enquiries made by it, the Commission will alsoaddress the larger question of the role of the State Police and thesecurity forces in Manipur. The Commission will also make a reportregarding the functioning of the State Police and security forces in theState of Manipur and in case it finds that the actions of the police and/orthe security forces transgress the legal bounds the Commission shall makeits recommendations for keeping the police and the security forces withinthe legal bounds without compromising the fight against insurgency. The Commission is requested to give its report within twelve weeksfrom today. The Central Government and the Government of the State of Manipur aredirected to extend full facilities, including manpower support andsecretarial assistance as may be desired by the Commission to effectivelyand expeditiously carry out the task assigned to it by the Court.
The Registry is directed to furnish a copy of this order and complete
sets of briefs in both the writ petitions to each of the members of the
Commission forthwith.
Put up on receipt of the report by the Commission.